District Court New South Wales Medium Neutral Citation: R v TROTT & ROBERTSON [2011] NSWDC 236 Hearing dates: 1 December 2011 Decision date: 01 December 2011 Before: Berman SC DCJ Decision: In each case the offender is referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order Catchwords: CRIMINAL LAW - Sentence - Robbery in company - Violence - Breach of the peace Cases Cited: R v Ranse (unreported) 8 August 1994 Category: Sentence Parties: The Crown Luke William Trott Matthew John Robertson Representation: Mr P Krisenthal - Offender Trott Director of Public Prosecutions Legal Aid Commission - Offender Robertson File Number(s): 2010/245103; 2010/251863 SENTENCE 1HIS HONOUR: Mathew John Robertson and Luke William Trott appear for sentence today after having pleaded guilty to an offence of robbery in company. They were each arraigned on an indictment containing two counts of robbery in company, the charge being the alternative, which the Crown accepted in full satisfaction of the indictment. 2The offenders went out drinking. It was Mr Robertson's birthday so he had more than the others. He, Mr Trott and two others, David Field and Christopher Hoffman, were driving home. As they travelled along Vine Street in Hurstville Mr Robertson needed to vomit and so the car pulled up. He got out of the car and vomited into the gutter. At the same time a man by the name of Krishna Sabkota was walking home. He had got off the train at 11 o'clock at Hurstville Railway Station and was heading home alone. It goes without saying that he should have been entitled to walk safely along the street without drunken, violent criminals setting upon him. Unfortunately Mr Robertson and Mr Trott did not seem to share that idea. 3Mr Robertson was out of the car but the others were in the car. Quite what occurred has been the subject of some discussion and evidence today. Mr Robertson has at one stage given evidence inconsistent with the version of events which appears and agreed, and I emphasise the word agreed, in the summary of facts. Indeed at one stage he denied committing a robbery at all. However after Mr Hutchinson spoke to him and he was recalled to give further evidence he did accept that he did what I am about to describe. 4As I said Mr Sabkota walked past Mr Robertson vomiting in the gutter. Mr Robertson approached Mr Sabkota and demanded that he give him his mobile phone. Mr Sabkota tried to run away but Mr Robertson was not going to have that. He chased after him and punched Mr Sabkota to his left shoulder. He punched him again which caused Mr Sabkota to fall to the ground. Mr Robertson was not finished. He continued to punch Mr Sabkota, as he was lying helpless on the ground, to his head, face and shoulder. 5By this stage Mr Trott had got out of the car. Contrary to what he has said to others who have interviewed him for the purpose of these proceedings he was involved in the robbery in the following way. Mr Sabkota saw Mr Trott and believing that Mr Trott might be able to help him he called out for help. Mr Trott's response was simply to punch Mr Sabkota in the head, face and his shoulder. It was at that stage that Mr Robertson took Mr Sabkota's mobile telephone from him and then one of them, either Mr Robertson or Mr Trott demanded that Mr Sabkota give them his money and wallet. Mr Sabkota showed his empty wallet to the offenders and they got back in their car and drove away. 6Not surprisingly Mr Sabkota immediately reported what had happened to the police. Police then discovered the car and, discovered incriminating material in it, including matters belonging to Mr Sabkota. They also discovered Mr Sabkota's mobile phone after one of the officers cleverly dialled his telephone number and heard Mr Sabkota's mobile telephone ringing in the car. 7This offence represents not only an offence of violence which has Mr Sabkota as its victim, it represents a very significant breach of the peace. Gleeson CJ, when he was the Chief Justice of New South Wales, spoke about offences of this type and the impact they have on the community in a decision called R v Ranse (unreported) 8 August 1994. He emphasised the breach of the peace aspect of offences of this kind. All of us should be able to walk home safely at night alone, and when offences of this kind occur, all of us suffer. We walk apprehensively. We are forced to take actions to ensure our personal safety. Many of us do not go out at night at all because of the fear that offences of this kind create. It is for this reason that offences of this kind are most serious indeed. 8This was not the first time that Mr Trott had committed an offence of this nature. Somewhat remarkably he was on parole at the time he committed this offence as well as probation. He had served a short period in custody in a Juvenile Justice facility for an offence of assault occasioning actual bodily harm and had been released to parole. He was on probation from the Children's Court. An examination of his criminal history reveals earlier offending involving robbery and robbery in company. The criminal history also reveals, that for all of his offending, Mr Trott was dealt with relatively leniently. I suspect this did him no favours. The leniency that was shown to Mr Trott, I have little doubt, created in him a belief that he could commit offences of this kind repeatedly and get away with them, that is, receive only minor punishment. That attitude seemed to have continued despite the breach of conditional liberty that this offence represented. No action was taken on the breach of parole and no action was taken on the breach of the probation order. That attitude by the authorities I believe has compounded the problem, I repeat, creating in Mr Trott the belief that he can commit offences of this kind and not be significantly punished. How else to explain why he would get out of the car whilst Mr Robertson was robbing Mr Sabkota and inflict violence upon him? 9Mr Trott is now twenty years of age, he was nineteen at the time of the offence. He is the only child born to his natural parents but he has met his biological father only once. He regards his stepfather as his father and he has two younger half-siblings, a sister and a brother. After his natural parents separated his mother began to drink and would fly into rages at her partners. Things improved after his mother met his stepfather. She ceased drinking and calmed down. He has a close bond with his half-siblings and lives in the family home with them. He had some troubles at school, being expelled for fighting. He ceased his secondary education when he got a job at the Pizza Hut. He has then had a number of other positions, including working as a removalist with his stepfather, securing an apprenticeship as a carpenter and now works as a carpentry apprentice for Building Advisory Service Pty Limited. A reference tendered from a director of that company speaks highly of him. 10He began to use alcohol when he was about fourteen and would drink to excess regularly. The fact that he committed this offence whilst intoxicated is not really a matter of mitigation in his case. He said that all his other offending occurred whilst he was drunk and so he must have been aware of the link between drinking and offending when he voluntarily consumed alcohol that evening. Of course the connection between alcohol and offending is still relevant however because if the offender can overcome his problems with alcohol then it is much less likely that he will continue to commit offences in the future. 11I now turn to the matter that Mr Krisenthal placed most emphasis on. Mr Trott spent two months and one week in custody. Because of his age that was an adult gaol. I observed Mr Trott give evidence about his experience in adult custody. I have no doubt that he found that experience scary or perhaps even terrifying. Having visited many prisons myself I can understand why he would feel that way. Prisons are terrible places, full of violent people who care little about the rights of others. Since being released on bail after two months and one week in custody Mr Krisenthal says there has been a remarkable turnaround in his client. No offence has been committed and he has complied with strict conditions of bail, including a curfew. He is now employed and well respected by his employers. Mr Krisenthal submits that his client has achieved already a substantial measure of rehabilitation. 12The material before me would suggest that he is, in many respects, a different person to the one who committed this offence in July last year. He appears to have abstained from alcohol. He has completed an anger management program with Enough is Enough, although I do note that he had started that program before he committed this offence. I accept that the offender does desire to put his offences behind him. Although he is quite young, he has managed to rack up a significant number of serious offences. Indeed, as at July 2010 he was demonstrating a continuing attitude of disobedience to the law. He seemed to have little thought for the consequences of his actions, either as far as he is concerned or, as far as the victims of his offences are concerned. But from what I can see there is at least the possibility that his time in adult prison has affected his outlook to the extent that he is making real and genuine efforts to rehabilitate himself. Mr Krisenthal suggested that whilst he accepted that a custodial sentence was required any sentence of imprisonment could be suspended assuming, of course, that the period of imprisonment I decide upon would be two years or less. 13In determining the length of the sentence I take into account the presentence custody and discount that sentence by ten per cent to reflect the utilitarian value of the plea. When I do that I reach a result where the sentence of imprisonment I am contemplating makes the offender entitled to a suspended sentence. But, and this is a big but, I do not consider that a suspended sentence is appropriate for two reasons. Firstly, it does not act as sufficient personal deterrence to the offender. Secondly, he needs to be punished for what he has done. 14The realities of a suspended sentence cannot be ignored. The offender walks out of court a free man subject to a requirement that he not commit criminal offences for the period of suspension. In contrast to what has occurred when he has been sentenced in the past, I consider that the offender needs to made aware in very concrete terms by the imposition of a sentence which carries a substantial element of punishment that he cannot continue to act in the way he has been and expect to get away with it. 15I turn now to Mr Robertson. In contrast to Mr Trott, Mr Robertson had no criminal history at all. He lived with his parents and two siblings until he was asked to leave home. This followed a period where the business that his parents were involved in failed. His father starting drinking excessively and the atmosphere at home changed considerably. After he left home he began squatting in a boatshed near his home. His younger brother used to bring him food. Notwithstanding that he was living alone, he continued to go to school. He remains distressed that his parents apparently made no attempt to enquire about his welfare. 16He moved in with his grandmother after completing his School Certificate and, whilst she was loving and caring, it was around this time that the offender started drinking significant quantities of alcohol. At one stage he was living in his car. Matters only began to improve after he met his girlfriend, Sally Carr. He has moved in with her family and lives there to this day. He has had very little contact with his own family and I rather gather has come to regard Ms Carr's family as his own. 17As with Mr Trott, he too has had work over the years and has been quite successful at whatever job he took on. He is now working for Leon K Engineering. He says very positive things about working for that company and the director, Leon Kallatsis speaks very highly of him. He hopes next year to begin a TAFE course in engineering. 18He has been assisted recently by a psychologist, Mr Neil Ballardie to deal with issues such as low self esteem and has also been involved in the Salvation Army's Positive Lifestyle Program. Reports from Mr Ballardie and the Salvation Army demonstrate that Mr Robertson has participated well in counselling and it has been of benefit to him. 19Of course one of the issues that arises in this case is parity. Neither Mr Robertson nor Mr Trott should have a justifiable sense of grievance when he compares the sentence imposed on him with the sentence imposed upon his co-offender. As in most cases there are factors that work both ways. Whilst Mr Robertson has no prior convictions and was not on any form of conditional liberty at the time of this offence, he was the prime mover in the offence. Nevertheless, because Mr Robertson's offence was his first, despite the fact that the was the prime mover, I will impose upon him a sentence which is less severe than the sentence I will impose upon Mr Trott. In Mr Robertson's case there is no history of him committing offences whilst intoxicated and so I will regard the circumstance that he was very significantly drunk to the point of vomiting at the time he committed this offence as a matter in his favour. 20Mr Hutchinson accepted that his client too could realistically only expect a custodial sentence and attention then turned to the form that it would take assuming, once more, that the length of the sentence I decided to impose upon Mr Robertson was such that alternatives were open. As with Mr Trott, I consider that a suspended sentence is inappropriate. It does not reflect the seriousness of what these two men did. It would not involve sufficient punishment of Mr Robertson. I believe that community expectations are such that someone who sets upon a young man walking home alone, strikes him repeatedly and robs him of his mobile phone are such that that person cannot go unpunished, even if it is their first offence. I believe that it is appropriate in this case for the sentence that I impose to reflect those community values. 21I raised with Mr Hutchinson whether an intensive corrections order would be appropriate. Mr Hutchinson's response was that the pre-sentence report suggested that Mr Robertson was not a person in need of supervision by the Probation and Parole Service because the issues that Mr Robertson faces with alcohol, anger management and the like are being dealt with elsewhere. On the other hand the report from the psychologist, Ms Robilliard, says that "Mathew may benefit from a period of monitoring and support by the Probation and Parole Service". Not only do I prefer the opinion of Ms Robilliard, given Mr Robertson's background, but I recognise that many components of an intensive correction order do involve hardship on the person serving that order and so there is a significant component of punishment involved in a person serving such an order. If it turns out that the Probation and Parole Service suggest that Mr Robertson is unsuitable for an ICO because he does not need supervision by the Probation and Parole Service then other forms of custody, short of full-time imprisonment, will be open to me. I have in mind, because of the length of the sentence I have decided to impose, the possibility of home detention. 22I return now to Mr Trott. This offence represents the culmination of a period of offending by a person who appeared to care little of his obligations to obey the law. He entirely voluntarily got out of the car that night and struck an entirely innocent person for reasons that are difficult to understand, knowing full well that if he did that he would likely go back into custody. Ordinarily that would mean that the only way that such a sentence of imprisonment could be served would be full-time in an adult gaol. However, I will not do that for two reasons. firstly, Mr Trott was not the prime mover and secondly, the evidence would suggest that, as Mr Krisenthal suggested, his short, sharp shock in the adult gaol has led to a significant change in his attitude and behaviour. I want Mr Trott to know however, how close he was to going back into an adult gaol for a significant period of time. This is one of those cases where the way in which the sentence of imprisonment should be served is finely balanced and it would not have taken much for me to decide that Mr Trott would not be going home today but would be going back to that awful place where, as I said earlier, violence is common and respect for the rights of others is almost entirely absent. 23I have decided that Mr Trott should, if eligible, serve the sentence of imprisonment by way of an intensive corrections order. If it turns out that he is not suitable then, because of the length of sentence I have decided to impose upon him, he will not be eligible for an alternative such as home detention and so there remains the possibility that despite everything I have said Mr Trott will nevertheless end up serving his sentence in an adult gaol. 24In each case I am satisfied that no penalty other than imprisonment is appropriate and that the sentence will be for a period of no more than two years. I can indicate that the periods I have determined will be appropriate are two years in the case of Mr Trott and eighteen months in the case of Mr Robertson. 25Each offender is referred for assessment as to his suitability for intensive correction orders as a means of serving the sentence. 26They are each to be granted bail on their current terms until they appear before me once more after the assessment has been completed. Now that will obviously have to be in the new year on 17 February 2012 at 2 o'clock. 27Mr Trott and Mr Robertson do you understand what I have done? Mr Trott, especially in your case you are not out of the woods yet. Much depends on the assessment by the prison authorities, so it is in your interest to co-operate with them and persuade them that you can do what you are promising to do. As I said if you are not suitable for this intensive correction order you might still end up in a prison. 28Mr Robertson, it is less likely that you will end up in prison but there is still a possibility depending on whether you are not suitable for an ICO. And if I remand you for assessment for home detention and you are not suitable you may well end up in gaol after all as well. 29So you are both on bail. It is important that you both comply with the conditions of bail. It is important that you both comply with the requirements of the people that will be assessing you. If you do not it is much more likely that you are going to go back into gaol. 30ADJOURNED TO 17 FEBRUARY 2012 AT 2PM FOR SENTENCE ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2012